[2025] UKUT 86 (AAC)

Judge Stout granted permission on the appellant’s numbered grounds 1, 2, 3, 5 and 7, explaining the reasons for the grant of permission and making certain observations about the grounds as follows:-

48.

In grounds 1 to 3 the appellant argues that DBS’ decision was procedurally unfair because DBS did not allow her to make representations, or extend time for her to make representations or allow her to make late representations and did not provide her with the CCTV footage or the other documents on which it relied. (As already noted, the appellant was at the hearing unsure about what documents she had received from DBS with the Minded to Bar letter.)

49.

For the following reasons, I consider it arguable that DBS erred in law in some or all of the respects identified by the appellant and I grant permission on grounds 1 to 3. As the appellant is unrepresented, I do not consider it appropriate to seek to limit the various inter-related arguments that she makes under these grounds in relation to procedural fairness, but the following points seem to me to be the clearly arguable errors of law that are raised by her in those grounds and on which DBS may wish to focus when responding to the appeal.

50.

First, by paragraph 3(2) and 9(2) of Schedule 3, DBS must give a person an opportunity to make representations before including them on the barred list. By paragraph 16(1) a person who is given the opportunity to make representations must have the opportunity to make representations in relation to “all” of the information on which DBS intends to rely in taking a decision under Schedule 3.

51.

If, as presently appears, DBS did not supply her with the CCTV footage, then it arguably failed to comply with those mandatory provisions of the Schedule and thus it is arguable that its power to include the appellant on the barred list had not arisen and/or that the decision was otherwise reached in error of law.

52.

If DBS did not supply the appellant with the other documentation on which it relied (which point will need to be confirmed by the appellant before DBS responds to the appeal in accordance with my directions below), the error would be compounded.

53.

Secondly, it seems to me that when refusing the appellant’s request for an extension of time to make representations in its letter of 17 August 2021 DBS arguably erred in law by treating the fact that her written request for an extension of time arrived one day after the time that had been stipulated for making representations as determinative that an extension could not be granted. That may be how the statute works in relation to decisions made by DBS under paragraphs 2 and 8 of Schedule 3 by virtue of the apparently strict provision of paragraphs 2(5) and 8(5), but there is no similar provision in paragraphs 3 and 9.

54.

Further, or alternatively, it is arguable that DBS erred in law in failing to exercise its discretion under paragraph 17(2) at that stage to decide whether to grant permission to make representations out of time.

55.

While I acknowledge that there is no right of appeal to this Tribunal against a refusal to extend time for the making of representations, it seems to me to be arguable that it is implicit in the legislation (and/or otherwise a requirement of procedural fairness) that DBS is required before including a person on a barred list to give them a reasonable opportunity to make representations. It is thus also arguable that a decision to include a person on a barred list without having given them a reasonable opportunity to make representations as required would be a decision reached in error of law as being materially unfair.

56.

If DBS has misunderstood its statutory powers in relation to extending time for representations and/or failed even to consider exercising its discretion to extent time and/or irrationally refused to extend time for making representations, I consider it arguable that this renders its decision to include the appellant on the barred list a decision made in error of law.

57.

I am conscious that UTJ Jacobs, when refusing permission on the papers, considered that defects of procedure such as these could be remedied through this appeal process, and he made orders intended to allow the appellant to view the CCTV evidence in order to refine her proposed grounds of appeal. However, normally, if there is an arguable error of law in a decision, permission would be granted unless the error was not arguably material. It may well be that any procedural error in this case is unlikely ultimately to make a difference to whether DBS decides to place the appellant on the barred list. However, the question of whether it is appropriate for the appellant to be included on the barred list is for the DBS, not this Tribunal, and at the permission stage (prior to a substantive response by DBS to the appeal) it does not seem to me to be right to assume what DBS’s approach will be to the appellant’s representations if, as and when she is permitted to make them and they are considered by DBS.

58.

Further, if the procedural errors alleged by the appellant had not occurred, and she had made representations, there would at least have been this difference: DBS’s decision letter would have contained reasons explaining why the appellant’s representations had been rejected. Reasons are important in this context for individuals who may struggle to understand how a dismissal from one job can lead to barring from their whole field of work and chosen career. It is arguable in this context that permitting the appellant to make representations and then giving of reasons for rejecting them (if that is the DBS’s decision) would itself amount to a material difference in outcome for this appellant.

59.

In any event, it seems to me that this is one of those cases where permission should be granted even if the procedural errors I have identified ultimately make no difference to this appellant. That is because there are potentially wider points of principle at stake, as I shall explain.

60.

Procedural fairness is always important, but especially in this regime which (in pursuit of the important aim of protecting children and vulnerable adults) has such profound effects on the individual concerned. Given the legislative hurdles that an appellant who has been included on a list has to surmount in order to get removed from a list, it may be thought to be particularly important that procedural fairness is observed at the outset and before DBS has made its decision to include the individual on a list (which decision it is thereafter in the position of defending with all the implications that has for confirmation bias in decision-making processes).

61.

I am concerned on the basis of what has happened in this case that DBS may be operating a more general practice of not properly considering requests for extensions of time to make representations and/or failing to provide individuals with the material required by paragraph 16(1). That concern arises from the following matters as they appear on the materials currently before me:

a.

the appellant’s account of the short shrift that she received on the telephone in response to her requests for an extension of time in which to make representations;

b.

the minimal reasons given by DBS for refusing her requests for an extension of time/right to make late representations (in response to detailed letters on her part); and

c.

the fact that DBS resisted providing the appellant with the CCTV evidence on which it had relied even after she commenced this appeal.

…

63.

Apart from the procedural fairness points already dealt with, Ground 5 argues (implicitly by reference to Article 8 mentioned in ground 4) that DBS’s decision to bar was disproportionate in the appellant’s case to the length of time that the appellant has worked without proven incident in the care sector, and her age because at 63 (as she was when she commenced this appeal), she feels there is no realistic prospect of her being able to re-train, gain experience and secure employment in another area of work before the end of her working life. The appellant’s age and its implications for her ability to secure alternative employment appear to me to be obviously relevant factors to take into account in assessing whether it is proportionate in a particular case, given the nature of the risk posed by the individual, to place an individual on a barred list. However, I have reviewed DBS’s decision letter and cannot find any reference to these matters. As such, I consider that it is arguable that DBS has erred in law by failing to take into account a relevant factor in its decision-making process and/or arguable that the decision to bar was in error of law as breaching DBS’s obligation as a public authority under s 6 of the Human Rights Act 1998 to act compatibly with the appellant’s Convention rights.

…

65.

Ground 7 argues that DBS should not have included the appellant on the children’s barred list because the allegations against her concerned an adult, she has never had any allegations against her concerning children, has never worked with children and, at the age of 63, nearing the end of her working life and with neither the relevant training, skills or experience, it is very unlikely that she will ever work with children.

66.

The effect of paragraph 4(1)(b) of Schedule 3 is that a person commits ‘relevant conduct’ in relation to a child if conduct against a vulnerable adult has been found proved and, if repeated against a child, it would endanger a child. I cannot see any error of law in DBS’s reasoning in this part of the decision letter, which is not perverse.

67.

However, under paragraph 3 of Schedule 3 DBS cannot include a person on the children’s barred list unless it also “has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to children” (paragraph 3(3)(aa)). In this case, the only reasoning in DBS’s decision letter addressing that condition is “you have previously applied for the role of Child and Adult Workforce Healthcare Assistant with United Kingdom Home Care Association Ltd”. At this hearing, the appellant confirmed she had made that application. However, an application is not evidence that the appellant “is or has been” engaged in regulated activity with children. Nor is it, without more, evidence that the appellant “might in future be” engaged in such activity. DBS’s decision letter contains no reasons at all explaining why DBS concluded that the condition in paragraph 3(3)(a) was satisfied. As such, it is arguable that DBS erred in law either by concluding that condition was satisfied or in failing to give adequate reasons for this part of its decision.

On 8 April 2024 the appellant filed a witness statement in response to directions Judge Stout had given in the grant of permission. This set out the appellant’s evidence regarding the alleged procedural errors in DBS’s decision-making, including her evidence as to what documents she had received from DBS at the time the decision was taken and her requests for extensions of time to make representations and/or to make late representations. She further stated: “I do not wish to set out my response to the videos now as I am considering the options that are open to me”.

DBS filed a reply to the appeal on 11 April 2024, resisting the appeal, but without having had sight of the appellant’s witness statement of 8 April 2024.

On 29 April 2024, Judge Stout gave directions requiring the respondent to provide a supplementary response in the light of the appellant’s witness statement. DBS then provided a supplementary response on 10 May 2024.

By directions sent to the parties on 1 July 2024, Judge Stout reminded the appellant that the Upper Tribunal has jurisdiction to deal with errors of fact and pointed out that DBS in response to the appeal was arguing that, even if her grounds of appeal were successful, and a procedural error of law established, her case should not be remitted to DBS because the error would not be material if she was not challenging any of the facts on which the decision was based. Judge Stout explained that, if DBS was right in its argument, then unless she put in a witness statement “setting out her factual challenges to DBS’s decision, her appeal may be unsuccessful”, but added “It is a matter for the appellant whether she wishes to take that risk or not”.

The appellant then provided a witness statement dated 5 July 2024 in which she referred back to the letter she wrote to DBS in August 2021 requesting additional time to submit her representations (see below). She quoted what she had said there about evidence that she believed her former employer and colleagues had that bore on the incidents for which she was dismissed and included on the barred list. She also reiterated what she had said about having been subject to racial abuse by the VA. She complained that the CCTV evidence was ‘incomplete’. She stated that she intended to call her former colleagues as witnesses.

By letter of 15 August 2024, DBS expressed concerns that it appeared that the appellant still did not understand “that she is able to challenge findings of fact through the Upper Tribunal process” and inviting the Upper Tribunal to make a specific order that the appellant set out all the challenges of fact that she wishes to make so that those challenges could be dealt with as part of this appeal rather than on remission to DBS.

By directions sent to the parties on 18 September 2024, Judge Stout expressed the view that the appellant did appear to understand that she could challenge facts in this appeal as her witness statement included challenges to some of the facts on which the decision was based, and indicated her intention to call witnesses. Judge Stout reminded both parties of the needs for statements of other witnesses on whom they wished to rely to be sent to the Tribunal and the other party at least 21 days before the hearing. Judge Stout also explained the Upper Tribunal’s power to make witness orders if required and how to apply for such an order.